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Leading Lawyers Praise 50-year-old High Court Decision, But Call for Expansion

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The County Times Newspaper

The Southern Calvert Gazette Newspaper

Posted on March 31, 2013

By KAYLA FARIA

BALTIMORE -- While the 50-year-old Supreme Court ruling that held lawyers in criminal courts are “necessities, not luxuries” forever changed the nation's judicial landscape, legal professionals argue its promises have largely gone unfulfilled.

Sentenced to five years in prison, Clarence Earl Gideon, a poor drifter arrested and charged with theft in Florida, penciled a five-page petition to the U.S. Supreme Court on prison stationary, appealing to fairness and equality after he was denied counsel in 1961.

The Supreme Court granted Gideon’s petition, appointing a prominent Washington lawyer to represent him. Gideon was acquitted in a retrial after his attorney discredited the testimony of a key witness.

Both the U.S. Department of Justice and University of Maryland School of Law recently commemorated the landmark ruling.

Hosted by the Maryland Law Journal of Race, Religion Gender and Class, Maryland law professor Douglas Colbert moderated a panel featuring Executive Director Timothy J. Murray of the Pretrial Justice Institute, Maryland Deputy Public Defender Charles H. Dorsey III, American University law professor Cynthia Jones and Maryland professor Chris Flohr on March 22.

"You are guilty until proven rich in this country in this state and in this city," Murray said. "You're more likely to be locked up before you have a chance to plea; you're more likely to be locked up without a lawyer, than once convicted."

Supreme Court Justice Elena Kagan, Attorney General Eric Holder and Vice-President Walter Mondale delivered remarks at the Department of Justice on March 15.

"America's indigent defense systems exist in a state of crisis," Holder said. "Despite half a century of progress, even today, in 2013, far too many Americans struggle to gain access to the legal assistance they need."

The high court's ruling in Gideon v. Wainwright overturned its 1942 decision that "appointment of counsel is not a fundamental right, essential to a fair trial" in the Maryland case of Betts v. Brady.

Colbert cited Betts as an example of the state's "truly checkered history" in the constitutional right to counsel.

In Betts, the state of Maryland denied the 43-year-old impoverished Maryland farmhand's request for counsel after he was indicted for robbery in Carroll County because he was not prosecuted in a capital case. Forced to represent himself, Smith Betts was sentenced to eight years in prison.

Before Gideon, Maryland felony defendants facing as much as a lifetime jail sentence were not guaranteed a lawyer.

The "Free State" still has not extended the right to a court-appointed attorney for indigent defendants at bail hearings, meaning that defendants who cannot afford bail or counsel may wait months in prison before being receiving court-appointed lawyers.

"Maryland's culture has not embraced the benefits of early representation," Colbert said. "There is, unfortunately, a legal culture which implicitly says that we're not going to provide the resources for an accused poor person."

Maryland is one of 24 states with Public Defender systems, but faces substantial challenges with overextended resources.

The Maryland Office of the Public Defender currently employs 570 attorneys -- more than seven times as many attorneys as the office hired when it was first established in 1972. Since its inception, the average number of cases for each attorney has nearly doubled, according to the office's fiscal year 2012 report.

Kagan said she is worried about this "systemic failure."

"I see just too many cases where there's been ineffective assistance of counsel," she said. "People who don't have the resources, who don't have the time, who have such a huge caseload, they have no opportunity, no time."

Maryland’s deputy public defender characterized public defenders as "young" and "overworked," while acknowledging that more time with clients means better representation. Dorsey emphasized the importance of counsel establishing a relationship with clients, finding witnesses and filing pretrial motions at initial appearances.

"The trial is the sexy part of the proceedings, but it all starts at pretrial," he said.

Jones maintained that lawyers should be appointed by the court to make legal arguments on history of violence, flight risk and potential danger to the community at bail hearings and slow down "assembly line justice."

For some law experts, assembly-line justice is about judges rapidly clearing their calendars.

"Judges are not judged by how they dispense justice (but instead) how they manage their dockets," Murray said. "There's the very real fear that if we start letting folks out, we're not going to be able to manage our dockets."

Colbert, who oversees the university's Access to Justice Clinic, referred to the assembly-line docket process in characterizing the criminal justice system today. Camera broadcasts from jail to the courtroom operate as a more "sanitized version," than the one in which he entered.

"People would literally come (in) chained to one another around their waist," he said. "Ninety percent were African American, so the picture that you were seeing was something that you could almost think that a slave ship had parked outside of the courthouse and had delivered people."

For Jones, current racial disparities in the criminal justice system partly stem from lack of representation at early court proceedings.

"The judge knows this is what you're charged with and this is what you look like," she said. "There's racism. There's discrimination against poor people. And there's a certain amount of arbitrariness on the front end that exists in large part because it's an entrenched culture and there are not lawyers there."

Mondale, the former Minnesota Attorney General who organized an amicus brief supporting Gideon that was ultimately signed by 22 other attorneys general, noted some of the political challenges that have impeded the extension of Gideon to this pretrial context.

"Arguing for more money to defend criminals is not the easiest way to win a close election," he said. "There's something about providing really good counsel with public money for a poor defendant that drives some people crazy."

In 2007, public defender offices nationwide spent $2.3 billion, according to the Bureau of Justice Statistics. But advocates argue that the state cost of incarceration for indigent defendants exceeds public defender costs.

Still, the legacy of Gideon is more than a financial balance sheet.

For Holder, it is a reminder of legal professionals' responsibility to "do justice."

"It's a powerful example of how – in this great country – even the humblest hands can help to bend the arc of history just a little further toward justice," he said.

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